Chapter VI.: Personal Wrongs, I.—: Assault and Battery.

Preliminary. Security for the person is among the first conditions of civilized life. The law therefore protects us, not only against actual hurt and violence, but against every kind of bodily interference and restraint not justified or excused by allowed cause, and against the present apprehension of any of these things. The application of unlawful force to another constitutes the wrong called battery: an action which puts another in instant fear of unlawful force, though no force be actually applied, is the wrong called assault. These wrongs are likewise indictable offences, and under modern statutes can be dealt with by magistrates in the way of summary jurisdiction, which is the kind of redress most in use. Most of the learning of assault and battery, considered as civil injuries, turns on the determination of the occasions and purposes by which the use of force is justified. The elementary notions are so well settled as to require little illustration.

What shall be said a battery. “The least touching of another in anger is a battery”; “for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it in any the slightest manner”. It is immaterial not only whether the force applied be sufficient in degree to cause actual hurt, but whether it be of such a kind as is likely to cause it. Some interferences with the person which cause no bodily harm are beyond comparison more insulting and annoying than others which do cause it. Spitting in a man’s face is more offensive than a blow, and is as much a battery in law. Again, it does not matter whether the force used is applied directly or indirectly, to the human body itself or to anything in contact with it; nor whether with the hand or anything held in it, or with a missile.

What an assault. Battery includes assault, and though assault strictly means an inchoate battery, the word is in modern usage constantly made to include battery. No reason appears for maintaining the distinction of terms in our modern practice: and in the draft Criminal Code of 1879 “assault” is deliberately used in the larger popular sense. “An assault” (so runs the proposed definition) “is the act of intentionally applying force to the person of another directly or indirectly, or attempting or threatening by any act or gesture to apply such force to the person of another, if the person making the threat causes the other to believe upon reasonable grounds that he has present ability to effect his purpose”.

Examples of acts which amount to assaulting a man are the following: “Striking at him with or without a weapon, or presenting a gun at him at a distance to which the gun will carry, or pointing a pitchfork at him, standing within the reach of it, or holding up one’s fist at him, or drawing a sword and waving it in a menacing manner”. The essence of the wrong is putting a man in present fear of violence, so that any act fitted to have that effect on a reasonable man may be an assault, though there is no real present ability to do the harm threatened. Thus it may be an assault to present an unloaded fire-arm, or even, it is apprehended, anything that looks like a fire-arm. So if a man is advancing upon another with apparent intent to strike him, and is stopped by a third person before he is actually within striking distance, he has committed an assault. Acts capable in themselves of being an assault may on the other hand be explained or qualified by words or circumstances contradicting what might otherwise be inferred from them. A man put his hand on his sword and said, “If it were not assize-time, I would not take such language from you;” this was no assault, because the words excluded an intention of actually striking.

Excusable acts. Hostile or unlawful intention is necessary to constitute an indictable assault; and such touching, pushing, or the like as belongs to the ordinary conduct of life, and is free from the use of unnecessary force, is neither an offence nor wrong. “If two or more meet in a narrow passage, and without any violence or design of harm the one touches the other gentle, it will be no battery”. The same rule holds of a crowd of people going into a theatre or the like. Such accidents are treated as inevitable, and create no right of action even for nominal damages. In other cases an intentional touching is justified by the common usage of civil intercourse, as when a man gently lays his hand on another to attract attention. But the use of needless force for this purpose, though it does not seem to entail criminal liability where no actual hurt is done, probably makes the act civilly wrongful.

Mere passive obstruction is not an assault, as where a man by standing in a doorway prevents another from coming in.

Words cannot of themselves amount to an assault under any circumstances, though there is evidence of an earlier contrary opinion:

There is little direct authority on the point, but no doubt is possible as to the modern law.

Consent, or in the common phrase “leave and licence,” will justify many acts which would otherwise be assaults, striking in sport for example; or even, if coupled with reasonable cause, wounding and other acts of a dangerous kind, as in the practice of surgery. But consent will not make acts lawful which are a breach of the peace, or otherwise criminal in themselves, or unwarrantably dangerous. To the authorities already cited under the head of General Exceptions we may add Hawkins’ paragraph on the matter.

“It seems to be the better opinion that a man is in no danger of such a forfeiture [of recognizances for keeping the peace] from any hurt done to another by playing at cudgels, or such like sport, by consent, because the intent of the parties seems no way unlawful, but rather commendable, and tending mutually to promote activity and courage. Yet it is said that he who wounds another in fighting with naked swords does in strictness forfeit such a recognizance, because no consent can make so dangerous a diversion lawful”.

It has been repeatedly held in criminal cases of assault that an unintelligent assent, or a consent obtained by fraud, is of no effect. The same principles would no doubt be applied by courts of civil jurisdiction if necessary.

Self-defence. When one is wrongfully assaulted it is lawful to repel force by force (as also to use force in the defence of those whom one is bound to protect, or for keeping the peace), provided that no unnecessary violence be used. How much force, and of what kind, it is reasonable and proper to use in the circumstances must always be a question of fact, and as it is incapable of being concluded beforehand by authority, so we do not find any decisions which attempt a definition. We must be content to say that the resistance must “not exceed the bounds of mere defence and prevention”, or that the force used in defence must be not more than “commensurate” with that which provoked it. It is obvious, however, that the matter is of much graver importance in criminal than in civil law.

Menace distinguished from assault. Menace without assault is in some cases actionable. But this is on the ground of its causing a certain special kind of damage; and then the person menaced need not be the person who suffers damage. In fact the old authorities are all, or nearly all, on intimidation of a man’s servants or tenants whereby he loses their service or dues. Therefore, though under the old forms of action this wrong was of the same genus with assault and battery, we shall find it more convenient to consider it under another head. Verbal threats of personal violence are not, as such, a ground of civil action at all. If a man is thereby put in reasonable bodily fear he has his remedy, but not a civil one, namely by security of the peace.

Summary proceedings when a bar to civil action. Where an assault is complained of before justices under 24 & 25 Vict. c. 100, and the complaint has been dismissed (after an actual hearing on the merits), either for want of proof, or on the ground that the assault or battery was “justified or so trifling as not to merit any punishment,” or the defendant has been convicted and paid the fine or suffered the sentence, as the case may be, no further proceedings either civil or criminal can be taken in respect of the same assault.